BR&I Pty Ltd T/A BR&I Pty Ltd - [2023] FWCA 1379

[2023] FWCA 1379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

BR&I Pty Ltd T/A BR&I Pty Ltd

(AG2022/4629)

TRACE OFFSHORE ENTERPRISE AGREEMENT 2021

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 15 MAY 2023

Application for variation of the TRACE Offshore Enterprise Agreement 2021

On 7 November 2022 BR&I Pty Ltd (BR&I) filed an application (Application) pursuant to section 217 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). The Application sought that the FWC order that clause 22.1 of the TRACE Offshore Enterprise Agreement 2021 (Agreement) be varied to remove an ambiguity.

The parties to the Agreement are BR&I and employees of BR&I that are engaged in one of the classifications listed in Appendix 2 of the Agreement to perform maintenance and implementation work on offshore facilities operated by INPEX in State or Commonwealth waters off the coast of Western Australia (Employees).

The Agreement commenced operation on 3 August 2021 and has a nominal expiry date of 27 July 2025.[1]

The Agreement was negotiated with BR&I on behalf of Employees by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers’ Union (AWU). The CEPU and the AWU (together the Unions) are covered by the Agreement.

Clause 22.1 of the Agreement provides that Employee pay rates and allowances shall increase annually by a nominated percentage or: “… the WA Cost Price Index (calculated based on the March quarter annual result for the relevant year) whichever is greater…”

The variation sought by BR&I is that the word ‘Cost’ in clause 22.1 of the Agreement is replaced with the word ‘Wage’ from the commencement of the operation of the Agreement on 3 August 2021.

On 24 November 2022 the parties participated in conciliation, and subsequently engaged in further discussions but ultimately the issues in dispute could not be resolved.

Directions for the filing of materials in advance of a hearing were issued to the parties on 1 December 2022 (Directions). The Application was listed for hearing in Perth on 17 February 2023 (Hearing).

Permission to be represented

The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[2]

BR&I sought permission to be represented at the Hearing.

Having considered the submissions of the parties, leave was granted to BR&I to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

At the Hearing Ms Heather Millar of Counsel (Ms Miller) appeared on behalf…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BR&I Pty Ltd T/A BR&I Pty Ltd [2023] FWCA 1379
Case: [2023] FWCA 1379
Decision Date: 15 MAY 2023

CaseChat Overview and Summary

BR&I Pty Ltd T/A BR&I Pty Ltd (BR&I) applied to the Fair Work Commission (FWC) for a variation of clause 22.1 of the TRACE Offshore Enterprise Agreement 2021 (the Agreement). BR&I sought to have the term “WA Cost Price Index” replaced with “Wage Price Index” to remove ambiguity. The parties to the Agreement are BR&I and the employees of BR&I that are engaged in one of the classifications listed in Appendix 2 of the Agreement to perform maintenance and implementation work on offshore facilities operated by INPEX in State or Commonwealth waters off the coast of Western Australia. The Agreement was negotiated with BR&I on behalf of Employees by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers’ Union (AWU). The AWU and the CEPU (together the Unions) are covered by the Agreement. The Agreement was approved by the FWC on 27 July 2021 and commenced operation seven days later. The FWC considered that clause 22.1 of the Agreement was ambiguous. The FWC noted that the phrase “WA Cost Price Index” did not unambiguously identify any existing recognised index against which wage escalations can be determined. The FWC was not satisfied that an agreement had been reached or a mutual intention existed with respect to the appropriate index. The FWC concluded that the appropriate mechanism to resolve this matter was for the parties to negotiate a variation to the Agreement which is mutually acceptable. The next escalation is not scheduled to occur until July 2023. Such a process provides the parties with the flexibility to negotiate more broadly and find a mutually agreeable outcome. If considered of assistance by the parties this process could be facilitated by the FWC. The application for variation of the Agreement was dismissed.

Orders